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NY Penal Law § 140.35: Possession of Burglar’s Tools
Possession of burglar’s tools, NY Penal Law § 140.35, is possessing any tool commonly used for forcible entry, larceny by physical taking, or certain theft of services offenses, under circumstances showing an intent to use it (or knowledge someone else intends to) for that kind of crime. Screwdrivers, pry bars, shims and booster bags have all been charged. It is a class A misdemeanor. Richard Hochhauser of Hochhauser Criminal & DWI Defense, PLLC is a former Long Island prosecutor who defends these charges in Nassau County and Suffolk County courts.
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NY Penal Law § 140.35 at a glance
| Possession of burglar’s tools | |
|---|---|
| Statute | NY Penal Law § 140.35 |
| Charge level | Class A misdemeanor |
| Maximum jail term | Up to 364 days |
| Key element | Circumstances showing intent to use the tool for a burglary, larceny or theft of services |
| Often charged with | Burglary, petit larceny and criminal trespass |
What NY Penal Law § 140.35 says
A person is guilty of possession of burglar’s tools when he possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving forcible entry into premises, or offenses involving larceny by a physical taking, or offenses involving theft of services as defined in subdivisions four, five and six of section 165.15, under circumstances evincing an intent to use or knowledge that some person intends to use the same in the commission of an offense of such character.
Possession of burglar’s tools is a class A misdemeanor.
Source: New York State Senate, official text. Read the full section, including any later amendments, before relying on it.
What the prosecutor has to prove
- You possessed a tool or other item adapted, designed or commonly used for forcible entry, larceny by physical taking, or certain theft of services.
- The circumstances showed that you intended to use it, or knew someone else intended to use it, for that kind of offense.
- Having an ordinary tool is not a crime; the circumstances must show criminal intent.
Penalties for possession of burglar’s tools
| Outcome | What it means |
|---|---|
| Jail | Up to 364 days (class A misdemeanor). |
| Probation | Up to 3 years of probation. |
| Reduced outcome | Often dismissed or reduced together with the underlying charge. |
Charged with possession of burglar’s tools?
Call before your next court date. Consultations are free, in person at our Hempstead office or by video call or phone call. We answer 24/7.
How possession of burglar’s tools charges show up on Long Island
In the cases we’ve seen over the last two years, PL 140.35 charges come up more often in Nassau County than in Suffolk County.
It usually accompanies burglary, petit larceny (for example, a foil-lined “booster bag” in a shoplifting case) or criminal trespass.
In Nassau County, arrests are arraigned at the Nassau County District Court, 99 Main Street, Hempstead, NY 11550, across the street from our office. Felony cases that are indicted move to Nassau County Court, 262 Old Country Road, Mineola, NY 11501. In Suffolk County, arraignments are held at the Suffolk County District Court, First District, 400 Carleton Avenue, Central Islip, NY 11722. Indicted felony cases go to Suffolk County Court, Arthur M. Cromarty Criminal Court Complex, 210 Center Drive, Riverhead, NY 11901.
An example
A contractor is stopped near a closed business late at night with a pry bar and screwdrivers in his truck. He is charged with PL 140.35. The defense shows the tools are part of his trade and that nothing about the circumstances shows an intent to break in.
Defenses to a PL 140.35 charge
- Legitimate purpose. Everyday and work tools are lawful to carry.
- No circumstances of intent. The prosecutor must show more than possession.
- Possession. Tools in a shared vehicle may not be yours.
- Underlying stop or search. Unlawful searches lead to suppression.
Related offenses
- Burglary in the third degree (PL 140.20)
- Criminal trespass
- Petit larceny (PL 155.25)
- Theft of services (PL 165.15)
NY Penal Law § 140.35: frequently asked questions
What is possession of burglar’s tools in New York?
Under Penal Law 140.35, it is possessing a tool commonly used for forcible entry, larceny by physical taking or certain theft of services, under circumstances showing intent to use it for such a crime. It is a class A misdemeanor.
Can I be charged for carrying ordinary tools?
Carrying tools is not a crime by itself. The prosecutor must show circumstances evincing an intent to use them for a burglary, larceny or theft of services.
Is a booster bag a burglar’s tool?
A bag designed or adapted to defeat store security can be charged as a tool used for larceny by physical taking, if the circumstances show intent to use it to steal.
Can a burglar’s tools charge be dismissed?
Often it is dismissed or reduced as part of resolving the underlying charge, especially when the tools have a legitimate use.
How much does a lawyer cost for this charge?
Hochhauser Criminal & DWI Defense, PLLC charges a flat fee, quoted after your free consultation, so you know the cost up front.
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This is general information about New York law, not legal advice about your case. Laws change, and the right defense depends on the facts. Prior results do not guarantee a similar outcome.
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